WHERE THERE’S A WILL… THE FIVE THINGS YOU NEED TO KNOW ABOUT PROBATE

Over the past quarter, our Legal Assistance Helpline has noted an increase in calls about probate. We understand that the administration of a person’s estate when they pass away can be confusing and often fraught with difficulties and challenges, so we’ve brought together the top five questions the team is commonly asked, and share our insights on the topic of probate.

1. How do I get access to a copy of the will?

In England and Wales, entitlement to read a will is dependent upon whether probate has been granted.

If the grant of probate has been issued, the will is now a public document and a copy can be obtained from the Probate Registry, after payment of the appropriate fee.

If probate has not yet been granted, a copy of the will can be requested from the executors, however they are not obliged to provide a copy, and should get permission from all named executors before showing the will.

If a grant of probate is not required, the will remains private although the executor will usually show the will to the beneficiaries.

2. What are the legal requirements for a valid will, and does it need to be registered?

For a will to be legally valid you must:

• Make the will in writing
• Be 18 years or older
• Make the will voluntarily
• Be of sound mind
• Sign it in the presence of two witnesses, who are both over the age of 18
• Have it signed by these two witnesses, in the person’s presence

In England and Wales, it’s not a legal requirement to register a will.

3. I have been left out of a will, can I claim anything from the estate?

In England and Wales, the law enables you to have ‘testamentary freedom’, meaning you can leave your estate to whomever you chose in your will.

However, under the Inheritance (Provision for Family and Dependants) Act 1975, certain categories of people can bring a claim against someone’s estate if they believe that they have not been left ‘reasonable financial provision’ under the will.

To bring such a claim, you must fall into one of these categories:

• The husband, wife, or civil partner of the deceased
• A former wife, husband, or civil partner of the deceased (who has not remarried or formed another civil partnership)
• A child of the deceased
• A person who was treated as a child of the family
• A person who was maintained by the deceased, wholly or partly, immediately prior to their death
• A person who, for the two years prior to the death, was living with the deceased as if they were a spouse or civil partner

It’s important that you seek specialist advice if you are considering contesting a will as there are strict rules and time limits in which to make a claim.

4. Can I do anything to stop my siblings/other family member taking items from the property before the estate has been properly administered?

Executors, beneficiaries, and other family members can be guilty of misappropriation of estate property. However, it can be difficult to prove if there’s no record of the items taken.

The executor(s) of the estate should investigate such claims and ensure that all assets are returned to them.

Any individual guilty of misappropriating assets would be personally liable to pay them back. If they are a beneficiary, their share may be reduced to the equivalent value of the assets. If the value of the assets is above their entitlement, or they are not a beneficiary, then they would be liable to pay the monies back from their own assets, such as bank accounts or property.

If an executor takes assets, then it would also amount to a breach of trust and are likely to be removed from their role.

Misappropriation of estate property could lead to criminal consequences and in certain circumstances can be considered as theft.

5. I don’t think my relative understood what they were leaving in the will, is there anything I can do to challenge the will validity?

If it’s suspected that a will does not reflect the true intentions of the person making it, or the will hasn’t been executed correctly, it may be invalid, and you may be able to contest it.

The validity of a will can be challenged on various grounds:

• If it was executed incorrectly
• A lack of capacity – the law states that at the time of drawing up a will, a person must be of ‘sound mind, memory and understanding’.
• Lack of knowledge and approval – a person must have understood and approved the contents for a will to be valid. If a person had necessary capacity, ‘knowledge and approval’ are normally presumed when the will is executed correctly. There are certain circumstances when a court may require evidence to prove ‘knowledge and approval’ if there are any disputes.
• Undue influence or coercion – if someone coerces or forces someone into changing their will for the coercer’s benefit, this is called undue influence. This, however, can be very difficult to prove.
• Forgery and fraud – If the contents of the will or the signature of the person who made the will is forged, or the contents of the will is fraudulent, then the will is invalid.
• Revocation – It may be possible to challenge a will if it’s alleged that it was revoked by the will-maker during their lifetime. A will is automatically revoked by marriage or civil partnership and can also be revoked by:
• Another will or codicil
• Confirmation, in writing, stating an intention to revoke (executed in the same way as a will)
• Destroying the will such as tearing or burning, with the intention of revoking it

Contesting a will in the UK is a complex process and we advise our customers to take specialist advice at an early stage to support them through the process.

For further information on the above, or details of our products and services, please contact your Partnerships Manager or email enquiries@arclegal.co.uk.